Dowden v Commissioner of Police [2023] QDC 111

DISTRICT COURT OF QUEENSLAND CITATION: Dowden v Commissioner of Police [2023] QDC 111 PARTIES: TY MCDONALD DOWDEN (Appellant) v COMMISSIONER OF POLICE (Respondent) FILE NO/S: 2599/22 DIVISION: Civil PROCEEDING: Appeal ORIGINATING COURT: Brisbane DELIVERED ON: 2 June 2023 DELIVERED AT: Brisbane HEARING DATE: 2 June 2023 JUDGES: Rackemann DCJ ORDER: Appeal dismissed CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was sentenced in the Magistrates Court to 12 months imprisonment with a parole release date after serving 4 months – where the appellant submitted that the learned Magistrate did not place enough weight on the appellant’s youth and lack of criminal history – whether the sentence imposed was manifestly excessive. COUNSEL: J Cook for the Appellant. E McGregor for the Respondent. SOLICITORS: Phillips Crawford Lawyers for the Appellant. Office of the Director of Public Prosecutions for the Respondent. -- 1 of 6 -- [1] On the 25th of October 2022, the appellant was convicted, on his own plea of guilty, of one count of assault occasioning bodily harm and was sentenced by the learned magistrate to 12 months imprisonment with parole release after serving four months. This appeal is against that sentence on the basis that it was manifestly excessive. On the hearing of the appeal, it was accepted that the head sentence was in range; it was the requirement for the appellant to serve some time in custody which was the focus of the dispute. [2] The facts giving rise to the offence were set out in a schedule which was tendered before the learned magistrate. The incident took place on the evening of the 16th of July 2022. At about 6 pm on that evening, the complainant was in the foyer of an accommodation building in Charlotte Street in the city. He had been consuming alcohol on the day and was standing near the concierge desk. [3] A female who was not known to him walked past and he attempted to have a conversation with her. The appellant would later claim that he understood that the complainant had said something inappropriate towards the woman, who was a 17 year old girlfriend of one of his friends. [4] This led a group of men, which included the appellant, to approach the complainant and start questioning him in relation to his conversation with the woman. One person in that group made some verbal accusation and got close to the complainant’s face in a threatening manner. This drew the attention of staff at the premises and they were all asked to leave. [5] One of the group grabbed the complainant by the arm and led him outside with them. Whilst outside, the complainant continued to be questioned. It is significant that, at this time, it is agreed that the complainant was standing on the footpath with his hands in his pockets. After a couple of minutes, one of the men began to walk away whilst the complainant was still standing with his hands in his pockets. At this point, the appellant remained and, without any warning, cocked his arm backwards and punched the complainant once in the head, thereby rendering him unconscious and causing him to fall to the ground. At this point, rather than tending to the complainant, the -- 2 of 6 -- 3 appellant callously left the complainant lying on the ground motionless while the appellant walked away. [6] Ultimately, the complainant was transported to the Royal Brisbane Hospital because of an open wound to his head, which was caused when he hit the ground. He also had swelling to his face. When the police spoke to the appellant, he tried to minimise the situation by claiming that the complainant arced up towards him. That claim can be seen in the context of the agreed facts, which has the complainant at all times standing with his hands in his pockets. The appellant also claimed to the police that he didn’t mean to knock the complainant out but: I meant to give him a little one. [7] That is not only minimisation but it is an admission as to the intentional nature of the blow. [8] The submission on behalf of the appellant that the learned magistrate arrived at a sentence which is manifestly excessive is not based on any wrong statement of principle to be found in his Honour’s sentencing remarks. Rather, it is on the basis that having regard to the facts and circumstances of the offence and the circumstances of the appellant himself, the sentence bespeaks error by reason of its inclusion of an element of actual custody. It is submitted that in requiring actual custody, his Honour must have given too much weight to considerations of deterrence and too little weight to considerations of rehabilitation. [9] It was submitted that the consideration of rehabilitation is significant in this case because of the relative youth of the appellant and his relatively minor criminal history. The written outline refers to his lack of previous convictions. That is not strictly true. The appellant has one entry in his criminal history which is an entry from the 25th of May 2021 when he was dealt with for a contravention of a domestic violence order and was given 12 months’ probation with no conviction recorded. The nature of that contravention of a domestic violence order was not placed before the learned magistrate and it appears that particular previous offending did not loom large in his Honour’s consideration. The subject offence, however, did occur a short time after the completion of the period of probation and one would have thought that having -- 3 of 6 -- 4 had at least some interaction with the justice system, the appellant might have been more conscious of the need to respect the law. [10] It is true that the appellant is relatively youthful, but, at 22 years of age, he is no longer a teenager and does not have extreme youth on his side. Further, as was recognised by the Court of Appeal in R v Middleton and Johns [2006] QCA 92, at para 39: …even for offenders aged 18 – the Court of Appeal – …will uphold sentences resulting in actual custody for first offenders with no prior convictions who plead guilty to assault occasioning bodily harm, where there are aggravating circumstances. Those can include the motive for the assault, its severity, or the circumstances of being armed and in company. While actual imprisonment is not mandated, it will ordinarily be within the proper exercise of a sentencing discretion. [11] Similarly, in R v Ball [2012] QCA 51, a case involving essentially a one-punch assault occasioning bodily harm, the Court of Appeal said, at paragraph 22: Offences involving personal violence raise considerations of general and personal deterrence which may warrant a custodial sentence even for a first offence. [12] It was pointed out on behalf of the respondent in the appeal that since those observations in the Court of Appeal, section 9 of the Penalties and Sentences Act was amended by the insertion of section 9(2)(a), which provides that the principles mentioned in subsection (2)(a), that “a sentence of imprisonment should only be imposed as a last resort” and that “a sentence that allows the offender to stay in the community is preferable”, do not apply to the sentencing of an offender for any offence that, relevantly, results in physical harm to another person. That was inserted in 2016. [13] Whilst counsel for the appellant pointed out that the facts in R v Ball were more serious, as is no doubt reflected in the higher head sentence that was imposed, he acknowledged the statement of principle. Ultimately, he submitted that the cases -- 4 of 6 -- 5 where it is appropriate to consider the imposition of actual custody are those where there is some aggravating circumstance, such as a protracted assault, particularly of someone who is already on the ground or otherwise in a prone position, or an assault that is in company or whilst armed, or which results in severe injury. Those are, of course, all matters of aggravation, but I do not consider that is necessarily an exhaustive list of the circumstances which can justify a term of actual imprisonment. [14] The circumstances of the offending here include some very concerning aspects and indeed aspects which differentiates the case from other cases which were discussed in the course of submissions. In particular, not only was the violence gratuitous but it was perpetrated without warning, on someone with his hands in his pockets, in no position to defend himself. It was perpetrated, it would seem, in order to punish him for what was perceived to be an earlier inappropriate remark to the lady to whom I have referred. It therefore has an element of vigilantism to it, which was a matter appropriately taken into account by his Honour at first instance. [15] This is not a case of an instant, spur-of-the-moment, defensive reaction to a perceived threat – when I say “threat”, as was the case in the single-judge decision R v Tumai, Clarke DCJ, 23 November 2020 – or provocation. That remark had come earlier and, in the intervening period, there had been a discussion with the complainant inside the premises. The group had then walked outside the premises and there had been a further discussion and one of the group had walked away. There was plenty of time for passion to cool, and the blow was deliberately delivered, and delivered, as I say, in what was a vigilante attack on a public street in the city. [16] The blow was of sufficient force to cause the complainant to lose consciousness and fall to the ground and suffer an open head wound as well as swelling to his face. The complainant was then simply left unconscious on the public footpath, in what was a callous abandonment by the appellant. It was not a case where the complainant was in premises where others could tend to him or was otherwise being tended to. It was simply a callous abandonment of someone left lying unconscious on a street footpath. [17] His Honour at first instance summed the facts up well as follows: What is apparent from those facts, is that the victim was no threat to you, he was standing with his hands in his pocket. You deliberately, and without -- 5 of 6 -- 6 warning, punched him. You punched him in the head. It was therefore like a king hit. He was obviously taken by surprise; there was no warning. And he was no threat to you. And then, you had to know that you left him lying on the ground. He was not moving. You rendered no assistance; you simply walked away. Your behaviour was clearly callous, totally uncaring, and cowardly. And, given your lame justification for your offending about his inappropriate speech to the girl, you also acted like a vigilante. [18] It seems to me that given those aspects, the offending in this case was sufficiently serious to justify a sentence which involved some actual custody. That is not to say that it would not have been within his Honour’s discretion to have given the appellant the benefit of immediate parole release, but I am unable to conclude that requiring the appellant to serve four months in actual custody was beyond a legitimate exercise of the discretion. It was not manifestly excessive. The appeal is dismissed. The appeal bail is revoked. -- 6 of 6 --